Judicial process – Digital Age Defensehttp://www.digitalagedefense.org/wp
On regulation of technologyTue, 22 Aug 2017 17:29:08 +0000en-UShourly1https://wordpress.org/?v=4.8.2My Fellow Liberals, Don’t Support Obama’s Terror Watch List Gun Ban (cross-post)http://www.digitalagedefense.org/wp/2016/01/18/my-fellow-liberals-dont-support-obamas-terror-watch-list-gun-ban/
Tue, 19 Jan 2016 00:30:06 +0000http://www.digitalagedefense.org/wp/?p=890[...]]]>The following was originally posted at The Daily Beast on 12/7/15. Later that day I also appeared on Al Jazeera TV to discuss the same topic.

I’m seeing a lot of friends and others who generally hang out near me on the left of the political spectrum express outrage at a recent vote in Congress to reject fixing what at first glance seems like a terrible loophole: People on the terrorist watch list can still buy guns. Even President Barack Obama, who called Sunday night for a law that would prevent people on a subset of the terror watch list from purchasing a firearm, is among this crowd.

Their outrage stems from the logical reaction, “If there are people we think are bent on doing us harm, why are we giving them easy access to the tools to do it?”

The concern is reasonable. The proposed remedy—to deny people on the watch list the ability to buy guns—is not, however. Not because it has anything to do with guns, but because it has to do with lists.

As Americans we understand well how important due process is. No one, for instance, should be thrown in jail just on the say-so of some government official who declares they deserve it. Such is the behavior of tyrants, the Founding Fathers understood, and so we enshrined in our Constitution the right to counsel, the right against being compelled to testify against oneself, the right to trial by jury, etc.

All of these rights are checks to ensure the government can’t simply pluck innocent people out of their lives and strip them of their life, liberty, or property. Only after fairly testing the charges against them can the government punish people with such deprivation.

But none of these hurdles must be overcome for the government to put someone on a list, especially not a list like this, which is a watch list. It is a list of people that for whatever reason (a reason that no one outside the government knows) the government has decided deserve closer scrutiny of their actions.

Is the government right to be concerned about these people? Maybe yes, but maybe not, and there is no way for ordinary citizens to know. Which means there is also no way for ordinary citizens to know whether any of them, even people who in no way intend to commit acts of terrorism, are also on that list.

In other words, there is no way to know whether you are on that list. Nor is there any way to know how to get off it.

That there is any list at all should give us all pause. It has not historically been the hallmark of a healthy democracy when governments have kept lists of people they didn’t like. It is hard to be a government of the people, by the people, and for the people when the government keeps track of the people, including those dissidents who would challenge it (which is something that in a democracy they are allowed, and even supposed, to do).

But how injurious a list may be to democracy and democratic values will ultimately depend on what the government does with the list, and that’s why this proposed legislation is so concerning.

Because what this proposal calls for is the government using the list as a basis to deny the people on it a right to which they were otherwise entitled. Now, maybe the modern interpretation of the right to bear arms has grown out of proportion from anything the Founders could possibly have intended, and maybe how we understand the scope of that right could use some adjustment. Addressing this question could potentially be a good place for gun control advocates to devote their efforts.

But based on the plain text of the Second Amendment and subsequent jurisprudence it is clear that some right is in there somewhere, and what this proposal calls for is for the government to arbitrarily and un-transparently deny this right to certain people without any sort of the due process ordinarily required. And that’s a problem.

Normally we do not let the government strip people of their rights without demonstrating why they deserve to be deprived of them. Here, though, we would be removing that safety check. With this proposal we would be authorizing the government to act capriciously and unaccountably for any reason, including—and this point cannot be emphasized enough—bad reasons or no reasons at all, and against anyone, including—and this point cannot be emphasized enough, either—people just like you. There would also be no reason why, if the government could take away this right this way today, it couldn’t take away other rights you depend on having the same way tomorrow.

The country is in a lot of pain right now, facing an injury that seems to have no end. It is not unreasonable to search for a solution as dramatic in effect as the injury itself. But we cannot let our fear and pain overpower our capacity for reason and restraint. Not only does it risk entrenching the politics of gun control at extreme, unbridgeable ends, but it also means that, if we’re not careful, the price we pay to heal one injury may be another one equally severe.

]]>A shielding law (cross-post)http://www.digitalagedefense.org/wp/2013/06/16/a-shielding-law/
Sun, 16 Jun 2013 20:34:56 +0000http://www.digitalagedefense.org/wp/?p=737[...]]]>While originally I intended this blog to focus only on issues where cyberlaw collided with criminal law, I’ve come to realize that this sort of analysis is advanced by discussion of the underlying issues separately, even when they don’t implicate either criminal law or even technology. For example, discussions about how copyright infringement is being criminally prosecuted is aided by discussion on copyright policy generally. Similarly, discussions about shield laws for bloggers are advanced by discussions of shield laws generally, so I’ve decided to import one I wrote recently on my personal blog for readers of this one:

Both Ken @ Popehat and “Gideon” at his blog have posts on the position reporter Jana Winter finds herself in. To briefly summarize, the contents of the diary of the alleged Aurora, CO, shooter ended up in her possession, ostensibly given to her by a law enforcement officer with access to it and in violation of judicial orders forbidding its disclosure. She then reported on those contents. She is not in trouble for having done the reporting; the problem is, the investigation into who broke the law by providing the information to her in the first place has reached an apparent dead end, and thus the judge in the case wants to compel her, under penalty of contempt that might include jailing, to disclose the source who provided it, despite her having promised to protect the source’s identity.

In his post Gideon make a compelling case for the due process issues at stake here. What’s especially notable about this situation is that the investigation isn’t just an investigation into some general wrongdoing; it’s wrongdoing by police that threatens to compromise the accused’s right to a fair trial. However you might feel about him and the crimes for which he’s charged, the very fact that you might have such strong feelings is exactly why the court was motivated to impose a gag order preventing the disclosure of such sensitive information: to attempt to preserve an unbiased jury who could judge him fairly, a right he is entitled to by the Constitution, irrespective of his ultimate innocence or guilt, which the police have no business trying to undermine.

Ken goes even further, noting the incredible danger to everyone when police and journalists become too chummy, as perhaps happened in the case here. Police power is power, and left unchecked it can often become tyrannically abusive. Journalists are supposed to help be that check, and when they are not, when they become little but the PR arm for the police, we are all less safe from the inherent danger that police power poses.

But that is why, as Ken and Gideon wrestle with the values of the First Amendment versus the values of the Fifth and Sixth the answer MUST resolve in favor of the First. There is no way to split the baby such that we can vindicate the latter interests here while not inadvertently jeopardizing these and other important interests further in the future.

Ken began with a personal anecdote that shaped his view, so I will include mine. On my watch as editor of the high school newspaper, we accepted, under condition of anonymity, a letter confessing to an act of politically-motivated criminal mischief. (More specifically, the source of the letter claimed to have ripped up the “no parking” signs and painted very real-looking parking spaces on the pavement in order to protest a much-loathed-by-students policy forbidding students from parking on the streets neighboring the high school.) Neither the underlying defiant act, nor the letter, sat well with school officials. Enraged with embarrassment that this crime had happened under their noses, together with the town police they went on the warpath to find the culprits. The miscreant(s) had woken the bear, and he was hungry for fresh meat, even if it was that of journalists. I was called into the principal’s office and (erroneously) threatened with charges of perjury if I did not divulge the source of the letter. (Important note: as powerful as public officials may be, their power does not necessarily correlate with their correctness.) I refused and got a lawyer instead.

Would the world have ended if I’d divulged the source? Maybe not. Maybe no one would have even gone to jail. But here was an issue relevant to the community that only with the help of the source we were able to fully report on. (Indeed, many students wanted to know what had transpired, because seeing the spaces and no signs, they’d parked in them and then gotten tickets.) If as a journalist I couldn’t get that sort of assistance because my promises of anonymity were meaningless, there would be a lot less that I could report on – no matter how much the community really needed to know it. Which brings us back to the situation in Aurora.

Ken and Gideon are likely right that in this instance the divulging of the diary’s contents by the police was a craven abuse of its power and position – and in a way that potentially represents real harm to the due process rights of the defendant. But I don’t think there is a way we could except this particular situation from the shield law (“shield law” being the term for the law generally permitting journalists to protect the identity of their sources, also sometimes referred to as “newsman’s privilege” or something similar) without doing some violence to the shield law’s durability and utility in other ways.

Since the 1970s we have seen the journalist’s privilege to protect a source as a qualified one that can be balanced against other compelling state interests. Even the Colorado shield law statute makes clear the privilege is not absolute. But great care must be made to not back away from it too easily – and subsequent jurisprudence supports this view – for the very reasons Ken and Gideon contemplate for why they may be tempted to do so here: because police power can so easily be abused.

It wasn’t just abused today, in this instance, but may also be tomorrow in many others, and we need to be able to know about it. But we are much less likely to when sources are chilled from coming forward and informing journalists about the things the public needs them to report on. Today, yes, it seems the anonymous police source has sought the shield of anonymity simply to protect himself from the consequences for having done something both highly illegal and gravely wrong. But what if tomorrow an anonymous police source seeks the shield of anonymity to protect it for when he does something that might similarly be illegal but, on balance, nonetheless right? Like, for instance, whistleblowing on other police abuse?

Whenever the shield law is asserted it’s never really about that particular situation; it’s always about being able to assert it in future situations, and that ability is undermined when the assertion can so easily be countermanded with post hoc judicial review. Both sources and reporters need a way to anticipate whether the promise of anonymity will either real or illusory, and the more frequently and more easily the promise is punctured the more illusory it will become. True, the Colorado shield law statute does contemplate situations under which the shield might be made to yield, but for the shield to retain any meaning these situations must be defined as narrowly as possible, practically to the point of never and even in the face of extremely compelling countervailing reasons. It cannot be denied based on merit of the reporter’s story, for no one is fit to arbitrate that worth. It cannot be denied based on the specific crime revealed by the information the source divulged, nor can it be denied based on crime potentially committed when the source divulged it, for no amount of journalist testimony will ever provide a cure for those crimes, and it’s sometimes only that promise of anonymity that let us know such a crime had even occurred. And it cannot be denied based on the interest, no matter how valid or important, that might potentially be jeopardized by the privilege’s assertion, for that is never the only interest in play.

First Amendment-enabled protections like shield laws provide an escape valve from the tyranny abusive police actions present. If, as Ken and Gideon ably argue, we need to ensure we have some defense against this power, then we need to sure that important safety measures such as newsman’s privilege remain in place, as potent as ever, to protect us.

]]>Newsman’s privilege and blogginghttp://www.digitalagedefense.org/wp/2013/04/09/newsmans-privilege-and-blogging/
Wed, 10 Apr 2013 00:45:11 +0000http://www.digitalagedefense.org/wp/?p=724[...]]]>I found myself blogging about journalist shield law at my personal blog today. As explained in that post, an experience as the editor of the high school paper has made newsman’s privilege a topic near and dear to my heart. So I thought I would resurrect a post I wrote a few years ago on the now-defunct blog I kept as a law student about how newsman’s privilege interacts with blogging as food for thought here. Originally written and edited in 2006/2007, with a few more edits for clarity now.

At a blogging colloquium at Harvard Law School [note: in April 2006] Eugene Volokh gave a presentation on the free speech protections that might be available for blogging, with the important (and, in my opinion, eminently reasonable) suggestion that free speech protections should not be medium-specific. In other words, if these protections would be available to you if you’d put your thoughts on paper, they should be available if you’d put them on a blog.

Where I commented was on his analysis of how the newsman’s privilege might specifically apply to blogs. Many seem to think this is a big thorny question since there are so many bloggers and thus so many people who may claim to be journalists. Personally I think if blogging gives us more journalists that’s a good thing, but the fear is that because the newsman’s privilege can keep information from being made available to certain judicial proceedings, if there are too many journalists because of blogging, too much information could be kept from the courts.

I don’t share this fear. I think the overall policy approach that has been struck in the past – that it’s better to allow the privilege to keep information from the courts because, were it not for the privilege, often none of the information would have come to light at all – can scale to accommodate blogging. In other words, while more information might be kept from the courts, because of blogging more information will reach the courts in the first place. The relative percentage of information kept from the courts should be about the same as it was under the traditional media model.

Thus the inquiry for whether and when there should be a valid privilege available for bloggers should be the same as it has been for traditional media, which is consistent with Volokh’s overall thesis. Where I differed from him was in suggesting that instead of evaluating whether the reach of a particular blogger justified his entitlement to the privilege, the analysis should instead hinge on the blogger’s functional intent. Thus as long as the blogger was engaging in a traditional newsgathering activity – gathering information for the purpose of disseminating it more widely – he shouldn’t be penalized for having a smaller readership by being deprived of the privilege. Important free speech rights should not be allocated based on popularity.* A lonely pamphleteer or a lonely blogger may essentially be crying into the wind with their information, but if their intention was to have their information be heard, that is what should earn them the privilege, regardless of if it is heard or how well. Furthermore, due to the nature of the Internet and its habit of never forgetting anything published on it, the lonely blogger’s post is likely to have a greater and more lasting effect than the lonely pamphleteer, whose First Amendment rights are more traditionally recognized but whose pages will wrinkle and rot over time. The true effect of a blog post may not become apparent for days, weeks, or even years after it is first posted. So if we were to assign journalist’s privilege based on readership, at the very least there would be a significant problem of metrics: at what point should we measure the audience?

Ultimately it’s the effect of the blogging that is most pivotal. Did it bring something important to light that otherwise would have gone undiscovered? Was privilege necessary in order to do it? To the extent that the answer to these questions is yes, the same reasons for allowing the privilege in the traditional media context should apply in the blogging context as well. Where things get messy, however, is in navigating the different types of privileges that might apply. Would it be an absolute privilege, or a qualified one? Would it be state or federal in origin? Volokh’s analysis mostly hung on these questions, as he parsed the relative state statutes to see what type of privilege they might allow. The problem is that if a blogger does not know whether or not he has a privilege at the time he does his reporting, it is hard to make the argument that he should be allowed to assert it later because he can’t make the “but for” argument – that “but for” the privilege he wouldn’t have discovered the information, since as far as he knew he didn’t have it. It would be contrary to the policy of offering any sort of newsman’s privilege if it could be retroactively asserted since its existence had offered no utility to the gathering of the information in the first place.

But the fact of the matter is that even for traditional media the newsman’s privilege has been a very murky area of law. Yet it appears that journalists have largely been resolving that ambiguity in favor of the belief they do, in fact, nearly always have the privilege. Ultimately that belief should carry weight, because even if in fact the privilege hadn’t clearly been available, if relying on the plausible belief that they would have had its protection had been essential to their newsgathering, then the important policy values behind the privilege would be vindicated. For bloggers, then, the same should also be true, and this is another reason why gauging their intention is so important. Just like with a traditional reporter, if the blogger intended to investigate and reveal the results widely, and if believing they had the newsman’s privilege was necessary in order to enable them to do so, then the results of their investigation should similarly be protected by it.

* I wrote in another old post that there often arises the notion that a blogger has no claim to protections like shield laws unless he is somehow associated with “The Media.” In other words, you can have no claim to press protections unless someone else owns your press. But such a view is silly and undermines the policy values for having these protections in the first place. If we, even inadvertently, start forcing bloggers into the corporate bosom for this “protection” we may very well eliminate the benefit of independent media that the blogging revolution has brought. We need to make sure that these independent voices can stand protected on their own. In fact, arguably protecting them may be even more valuable to our democracy than the more over-consolidated mainstream press currently more clearly protected.